PTSD partially due to a noose in the workplace

PTSD partially due to a noose in the workplace.
Jewel Ford v.  Department of the Army

05980506

June 12, 2001

.

Jewel Ford,

Complainant,

v.

Thomas E. White,

Secretary,

Department of the Army,

Agency.

Request No.  05980506

Appeal No.  01960932

Agency No.  94070022

Hearing No.  320-95-8110

DECISION ON REQUEST FOR RECONSIDERATION

On March 24, 1998, Jewel Ford (complainant) timely initiated a request

to the Equal Employment Opportunity Commission (the Commission) to

reconsider the decision in Jewel Ford v.  Department of the Army, EEOC

Appeal No.  01960932 (March 12, 1998).  EEOC regulations provide that

the Commissioners may, in their discretion, reconsider any previous

Commission decision. 29 C.F.R. § 1614.405(b).  The party requesting

reconsideration must submit written argument or evidence which tends

to establish one or more of the following two criteria: the appellate

decision involved a clearly erroneous interpretation of material fact

or law; or the decision will have a substantial impact on the policies,

practices or operations of the agency. Id.  For the reasons set forth

herein, complainant’s request is granted.

Our previous decision dismissed complainant’s appeal because complainant

filed a civil action in the Federal District Court for the District

of Colorado, identified as Civil Action No. 97-S-1631.  Pursuant to 29

C.F.R. § 1614.409, the filing of a civil action shall terminate processing

of an appeal.  Complainant argues that we erred in dismissing his

appeal because the issues which were before the District Court, were not

identical to those previously appealed to the Commission.  In support of

this argument, complainant submits the District Court’s Findings of Fact

and Conclusions of Law, which was not previously available for review.

Dismissal of the EEO complaint is appropriate only where the issues

in the complaint and before the District Court, are identical. Bellow

v. USPS, EEOC Request No. 05890913 (November 27, 1989).  Upon review of

the record, we conclude that the complaint concerns different issues

from those decided by the District Court.  The issues in the instant

complaint concern allegations of harassment which occurred between 1985

and 1994.  In contrast, the issues which were before the District Court

primarily concern a noose that was hung from the ceiling over the chair

where complainant sat on August 8, 1996.  The District Court’s Findings

of Fact and Conclusions of Law do not include findings relative to the

harassment which allegedly occurred between 1985 and 1994.  Since our

previous decision dismissed complainant’s appeal, the Commission has

not yet addressed the merits of his complaint.  Therefore we reopen

the administrative forum to complainant’s appeal. Quintero v. USPS,

EEOC Request No. 05920926 (January 7, 1993).

Complainant alleged that he was harassed in violation of Title VII of the

Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et

seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. § 791 et seq.<1> on the bases of his race

(African-American), color (black), disability (post-traumatic stress

disorder (PTSD)), and reprisal (prior EEO activity protected by Title

VII and the Rehabilitation Act) when:

on April 11, 1994, the agency charged him with two hours of annual

leave for leaving work an hour and twenty minutes early on April 8, 1994;

on January 31, 1994, he was questioned about his assignment;

in January 1994, a co-worker was not reprimanded for writing offensive

graffiti and the graffiti was not removed for at least three months

while complainant was accused of damaging agency equipment;

co-workers were questioned about his whereabouts, what kind of vehicle

he drove to work, and where he parked;

in March 1994, he was prohibited from bringing his cellular phone with

him to work;

the agency failed to respond to complainant’s repeated requests not to

be supervised by an abusive agency official;

on March 1, 1994, his supervisor yelled at him to “get out, go get

another job, get the hell out!”

he was followed and watched and on April 11, 1994, he was accused of

“hot rodding” in his truck;

he was constantly, falsely, accused of incidents, including sexual

harassment in 1986 and 1989;

his assigned vehicle is frequently checked to see if it was clean;

in 1996 or 1997, an EEO counselor promised him that if he dropped

his complaint, harassment would stop and when complainant dropped the

pending complaint, the harassment began anew;

in May 1991, he was issued a letter of guidance concerning leave,

although he took leave to cope with ongoing harassment;

between September 1993 and January 1994, complainant was temporarily

promoted to the position of Garbage Truck Driver but, unlike a

non-Black employee similarly detailed, he was not paid the higher rate

of compensation during the detail;

he was followed and given directions by people who did not directly

supervise him;

he was told that he would receive a counseling letter if he did not

apologize for the March 1, 1994 incident, and

throughout the last ten years, he was continually asked “why don’t

you quit, get the hell out and get another job?”  On April 12, 1991,

he filed an assault charge against one of his supervisors.

The record reveals that complainant, a Tractor Operator at the agency’s

Fitzsimons Army Medical Center in Aurora, Colorado, filed a formal EEO

complaint with the agency on May 26, 1994, alleging that the agency had

discriminated against him as referenced above.  At the conclusion of the

investigation, complainant was provided with a copy of the investigative

report and requested a hearing before an EEOC administrative judge

(AJ).  Following a hearing, the AJ issued a decision finding that the

agency’s failure to pay complainant at a higher rate between September

1993 and January 1994, when he was temporarily promoted to the position

of Garbage Truck Driver, was based upon his race, color, and reprisal

discrimination and ordered the agency to award complainant back pay,

compensatory damages and attorney’s fees.  However, the AJ did not find

discrimination on any other basis.  The final agency decision (FAD)

adopted the AJ’s findings of no discrimination, but found, contrary to

the AJ, that complainant had not been discriminated against with respect

to the agency’s failure to temporarily pay him at a higher rate during

the detail to the Garbage Truck Driver position.  For the reasons which

follow, we reinstate the AJ’s finding.

ANALYSIS AND FINDINGS

Disability

We affirm the AJ’s finding that complainant failed to establish that he is

an individual with a disability within the meaning of the Rehabilitation

Act.  Complainant contends that the Agency violated the Rehabilitation

Act when it failed to accommodate his PTSD by not assigning him to a

position in which he would have no contact with his supervisor (RMO).

In order to raise a disability discrimination claim under the

Rehabilitation Act, a complainant must establish that he is an “individual

with a disability” within the meaning of the statute. An “individual with

a disability” is one who: (1) has a physical or mental impairment that

substantially limits one or more major life activities; (2) has a record

of such impairment; or (3) is regarded as having such an impairment. 29

C.F.R. §1630.2. Major life activities include activities such as caring

for oneself, performing manual tasks, walking, seeing, hearing, speaking,

breathing, learning, and working. 29 C.F.R. §1630.2(i). Complainant must

further demonstrate that he is a

“qualified” individual with a disability, meaning that he can perform

the essential functions of the “position such individual holds or

desires.” EEOC Regulation 29 C.F.R. §1630.2(m).

Complainant has failed to establish that PTSD substantially limits him

in any major life activity.  We credit the testimony of complainant’s

psychiatrist who testified that PTSD did not substantially limit any

of complainant’s major life activities.  Complainant’s psychiatrist

further testified that  the alleged harassment at work did not

aggravate complainant’s PTSD.  For the first time at the hearing,

complainant asserted that the agency failed to accommodate his anxiety

disorder, however, there is no evidence to establish that the anxiety

disorder substantially limited complainant in a major life activity.

Complainant’s PTSD and anxiety disorder, when analyzed together, have not

been demonstrated to substantially limit him in any major life activity.

Harassment

We affirm the AJ’s finding that complainant failed to demonstrate that

he was harassed on the bases of his race, color or prior protected

activity.  Harassment of an employee that would not occur but for the

employee’s race, color, sex, national origin, protected activity, age,

disability, or religion is unlawful, if it is sufficiently patterned or

pervasive. Wibstad v.  USPS, EEOC Appeal No. 01972699 (Aug. 14, 1998)

(citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)). The

Supreme Court has stated that, “[c]onduct that is not severe or pervasive

enough to create an objectively hostile work environment – an environment

that a reasonable person would find hostile or abusive – is beyond

Title VII’s purview.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 22

(1993).  In determining that a working environment is hostile, factors

to consider are the frequency of the alleged discriminatory conduct, its

severity, whether it is physically threatening or humiliating, and if it

unreasonably interferes with an employee’s work performance. See Harris,

510 U.S. at 21; EEOC Notice No. 915.002 (March 8, 1994), Enforcement

Guidance on Harris v. Forklift Systems, Inc. at 3, 6.

In reviewing the AJ’s factual findings we note that pursuant to 29

C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be

upheld if supported by substantial evidence in the record.  Substantial

evidence is defined as “such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.”  Universal Camera

Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted).  A finding regarding whether or not discriminatory

intent existed is a factual finding.  See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982).

With respect to a number of the incidents cited by complainant as

constituting harassment, the Commission finds no basis upon which

to disturb the AJ’s finding that he failed to refute the legitimate,

nondiscriminatory reasons proffered by the agency for the cited actions.

See Wolf v. United States Postal Service, EEOC Appeal No.  01961559

(July 23, 1998).  The AJ concluded that complainant is a highly

sensitive employee who sees a great many exercises of supervisory

control as harassment.  With respect to the remaining incidents, we

again decline to disturb the AJ’s conclusion that complainant failed

to establish that any of such incidents, except for the failure to

promote him during a detail assignment, occurred on the basis of his

membership in any protected class.  We find that the challenged actions,

when viewed cumulatively, were not severe or pervasive enough to create

an objectively hostile work environment.  The substantial evidence in

the record supports these conclusions.

We have considered the use of racial slurs in the workplace.  These

racial slurs were not specifically raised in the instant complaint,

but were raised before the AJ at the hearing.  The AJ found that

during 1991, co-workers used the phrases “uppity nigger” and “Black

SOB” in complainant’s presence.  The AJ also found that supervisors used

racially offensive language out of complainant’s hearing.  The AJ properly

considered whether these racial slurs created a hostile work environment.

We concur with the AJ’s conclusion that the racial slurs were not

sufficient to create a hostile work environment.  In so finding, we

note that the comments were unaccompanied by any concrete agency action,

and appear to be isolated incidents which occurred approximately three

years prior to the filing of this complaint.  We remind the agency that

racial slurs could, under different circumstances, justify a finding of

discrimination. See, e.g. Yabuki v. Department of the Army, EEOC Request

No. 05920778 (June 4, 1993).

Disparate Treatment

Notwithstanding the AJ’s conclusion that complainant failed to demonstrate

harassment, she determined that the agency’s failure to promote

complainant during a detail assignment was motivated by discriminatory

animus. In the absence of direct evidence of discrimination, the

allocation of burdens and order of presentation of proof in a Title VII

case alleging discrimination is a three-step process. McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-803 (1973).  First, complainant

must establish a prima facie case of discrimination by presenting

facts that, if unexplained, reasonably give rise to an inference of

discrimination, i.e., that a prohibited consideration was a factor in

the adverse employment action. McDonnell Douglas, 411 U.S. at 802. Next,

the agency must articulate a legitimate, nondiscriminatory reason(s)

for its actions. Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 253 (1981).  If the agency is successful, then the complainant

must prove, by a preponderance of the evidence, that the legitimate reason

proffered by the agency was a pretext for discrimination. Id. at 256.

Regarding complainant’s assertion that the agency charged him with two

hours of annual leave for leaving work an hour and twenty minutes early

because of a stress headache on April 8, 1994,  the agency responded

saying that complainant’s supervisor initially found him absent

without leave (AWOL), but later reclassified the leave appropriately.

The record reveals that complainant’s unplanned absence on April 8,

1994, created some confusion about his whereabouts. We find that placing

complainant on AWOL, until his leave status could be clarified, is a

legitimate and nondiscriminatory exercise of supervisory authority.

Complainant proffers no evidence from which we can conclude that the

April 8, 1994 leave classification was motivated by a prohibited factor.

Between September 1993 and January 1994, the agency detailed complainant

to the position of Garbage Truck Driver, but it did not temporarily

promote him or pay him at the WG-7 rate.  Complainant alleged that

the agency’s decision not to promote him was motivated by race, color,

and reprisal discrimination.  In 1992, the agency temporarily promoted a

White tractor operator to a garbage truck driver position and paid him at

the WG-7 rate during the detail.  The agency articulated a legitimate

nondiscriminatory reason for not promoting complainant during his

detail; namely, a delay in paperwork and lack of agency funds in 1993-94.

However, we agree with the AJ’s finding that these reasons are unworthy

of belief.  See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,

(2000) (the Supreme Court held that a plaintiff may show pretext,

by establishing a prima facie case and sufficient evidence to that

defendant’s explanation is unworthy of credence).  The agency official in

charge of processing the paperwork promised complainant at various stages

that he was processing the necessary paperwork and that he could be paid

at the WG-7 rate.  However, the agency is unable to prove that it even

began processing the necessary paperwork.  The record establishes that

complainant’s immediate supervisors erected obstacles to prevent him from

being compensated at the WG-7 rate.  We concur with the AJ’s finding that

the reasons proffered were a pretext for race and color discrimination

as well as retaliation for complainant’s prior protected activity, and we

therefore affirm the AJ’s finding of disparate treatment discrimination.

CONCLUSION

After a review of complainant’s request for reconsideration, the

previous decision, and the entire record, the Commission finds that

complainant’s request meets the criteria of 29 C.F.R. § 1614.405(b), and

it is the decision of the Commission to grant the request.  Furthermore,

upon consideration of all of the record evidence, it is the decision

of the Commission to reverse our finding in Appeal No. 01960932 and

reinstate the AJ’s finding of race, color, and reprisal discrimination

only as it relates to the agency’s failure to promote complainant to

the WG-7 rate during his detail to the position of Garbage Truck Driver

between September 1993 and January 1994.  Accordingly, we reverse the

agency’s final decision and remand the matter to the agency to take

remedial actions in accordance with this decision and the ORDER below.

There is no further right of administrative appeal on the decision of

the Commission on a Request to Reconsider.

ORDER

The agency shall compensate complainant retroactively for the salary

differential between WG-6 and WG-7, for the time he was detailed as a

truck driver, with interest.

The issues of compensatory damages and attorney’s fees and costs are

REMANDED to the agency.  The agency shall conduct a supplemental

investigation of the compensatory damages issue.  Complainant,

through counsel, shall submit a request for attorney’s fees and costs

in accordance with the Attorney’s Fees paragraph set forth below.

No later than sixty (60) days after the agency’s receipt of the

attorney’s fees statement and supporting affidavit, the agency shall

issue a final agency decision addressing the issues of attorney’s fees,

costs, and compensatory damages.  The agency shall submit a copy of the

final decision to the Compliance Officer at the address set forth below.

The agency shall change complainant’s personnel records to reflect that

he was temporarily promoted during the detail.

The agency shall provide training to all the management officials

responsible for this matter in their duties and obligations under Title

VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. §

2000e et seq.  This training must include the agency’s responsibility

provide a work environment free of racial slurs, epithets or racially

derogatory remarks.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled “Implementation of the Commission’s

Decision.” The report shall include supporting documentation of the

agency’s calculation of back pay and other benefits due complainant,

and the agency’s decision regarding compensatory damages, including

evidence that the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Fitzsimons Army Medical Center in

Aurora, Colorado copies of the attached notice.  Copies of the notice,

after being signed by the agency’s duly authorized representative, shall

be posted by the agency within thirty (30) calendar days of the date

this decision becomes final, and shall remain posted for sixty (60)

consecutive days, in conspicuous places, including all places where

notices to employees are customarily posted.  The agency shall take

reasonable steps to ensure that said notices are not altered, defaced,

or covered by any other material.  The original signed notice is to be

submitted to the Compliance Officer at the address cited in the paragraph

entitled “Implementation of the Commission’s Decision,” within ten (10)

calendar days of the expiration of the posting period.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0501)

Compliance with the Commission’s corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C.  20036.  The agency’s report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant.  If the agency does not comply with the Commission’s

order, the complainant may petition the Commission for enforcement

of the order.  29 C.F.R. § 1614.503(a).  The complainant also has the

right to file a civil action to enforce compliance with the Commission’s

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

“Right to File A Civil Action.”  29 C.F.R. §§ 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999).  If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated.  See 29 C.F.R. § 1614.409.

STATEMENT OF RIGHTS – ON APPEAL

RECONSIDERATION (M0701)<2>

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party’s timely request for reconsideration. See 29

C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).  All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036.  In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. § 1614.604.  The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request.  Any supporting documentation

must be submitted with your request for reconsideration.  The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances.  See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint.  However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court  within ninety (90) calendar days from the date

that you receive this decision.    In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission.  If you file a civil action, you must name as the defendant in

the complaint the person who is the official agency head  or   department

head, identifying that person by his or her full name and official title.

Failure to do so may result in the dismissal of your case in court.

“Agency” or “department” means the national organization, and not the

local office, facility or department in which you work.  Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security.  See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court.  Filing a request for an attorney does not extend your time

in which to file a civil action.  Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

(“Right to File A Civil Action”).

FOR THE COMMISSION:

______________________________

Frances M. Hart

Executive Officer

Executive Secretariat

June 12, 2001

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed.  I certify

that this decision was mailed to complainant, complainant’s representative

(if applicable), and the agency on:

________________

Date

______________________________

Equal Opportunity Assistant

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission dated ___________ which found that

a violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. §2000e et seq., has occurred at this facility.

Federal law requires that there be no discrimination or retaliation

against any employee or applicant for employment because of that person’s

RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, PRIOR EEO ACTIVITY or

PHYSICAL or MENTAL DISABILITY with respect to hiring, firing, promotion,

compensation, or other terms, conditions, or privileges of employment.

The Fitzsimons Army Medical Center in Aurora, Colorado, (hereinafter

referred to as “facility”) supports and will comply with such Federal

law and will not take action against individuals because they have

exercised their rights under law.

The facility has been found to have discriminated against an employee

on the bases of his race, color and reprisal for failing to promote him

during a detail assignment.  The facility has been ordered to give the

supervisors involved training regarding the requirements of the law

referred to in this posting and to ensure that officials responsible

for personnel decisions and terms and conditions of employment will

abide by the requirements of all Federal equal employment laws.

The facility will not in any manner restrain, interfere, coerce,

or retaliate against any individual who exercises his or her

right to oppose practices made unlawful by, or who participates in

proceedings pursuant to, Federal equal employment opportunity law.

_________________________

Date Posted:  ____________________

Posting Expires:  _________________

29 C.F.R. Part 16141  The Rehabilitation Act was amended in 1992 to apply

the standards in the Americans with Disabilities Act (ADA) to complaints

of discrimination by federal employees or applicants for employment.

2  Since this is the first decision to consider the complaint on its

merits, the parties are given the right to request reconsideration.